


.v^ \s 



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THE TRADE-MARK FILE 

OF THE U. S. PATENT OFFICE 



ITS 

2 VITAL DEFECTS 



AND 



THEIR CORRECTION 



BY 

Henry C. Thomson, Esq. 
of boston 



REPRINTED PROM THE 

JOURNAL 

PATENT OFFICE 
SOCIETY 



m 




Tray from the writer's "INDUSTRY'' File 

Class 39, '^ Clothing.'^ Subclass ''Hosier\V 




Tray from the writer's "A to Z" FILE 

Marks in Classes 1 to 49 from ''SML" to '*SER" 

(Note absence of vowels on .aiTiide card?) 

Copyright, 19:2. by Henry C. Thomson. 

©n!.A654330 
JAN 20 I9?2 



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THE TRADE-MARK FILE OF THE U. S. PATENT 



.< OFFICE. 



^ Its Two Vital Defects and Their Correction. 



By HENRY C. THOMSON. 



Author's Note. Inasmuch as a perusal of this article by per- 
sons, who are not thoroughly conversant with the present Patent 
Office conditions, may create a suspicion that my criticism is direct- 
ed, in part, against the personnel of the Trade-Mark Division of 
the Patent Office, the writer considers it his bounden duty to state 
unreservedly that commendation rather than criticism should be 
extended to Chief Examiner Mead and his corps of Assistant Ex- 
aminers, for their faithful and sustained efforts to surmount diffi- 
culties heaped upon this Division by an ungrateful, slothful, neg- 
lectful and parsimonious Congress which tolerates, unabashed, the 
doing of twice as much work for practically half as much pay by 
these hard working men and women. Betterments are constantly 
being sought by Examiner Mead. If he does not urge the adoption 
of my hobbies, the reader may be assured either that it is be- 
cause he does not hold the same opinions as the writer, or con- 
siders that the necessary changes and additional files would be im- 
practicable for installations in the Patent Office. 



(Part I) 



Vowel-Consonant Filing Faulty. 

Late one Friday, the credit manager of a manufactur- 
ing concern became suspicious of the financial stability 
of an old customer, John Duley. He telephoned the 
shipping department, and asked if there were any un- 
delivered orders for Duley, and after a short time was 
advised that there were none. On the following Wednes- 
day John Duley went into voluntary insolvency, and that 
same afternoon shipping tickets were turned over to the 
billing clerk for goods shipped to John on the previous 
Monday, amounting to several thousand dollars. 

As a result of the investigation that followed, it was 
learned that the head shipper had been absent on Friday; 



^ 3 'J//Z 



— 2— 

that the assistant shipper, a new man, unacquainted with 
the firm's customers, had answered the phone; that in- 
stead of consulting the name D-U-L-EY in the card cata- 
logue, he had searched for D-0-O-L-E-Y; that since he 
has not found it in the files, he had reported, ^*no or- 
ders''; and also that the names commencing with D-0 
were in one box, while those commencing with D-U were 
in another. The investigation was not necessary to bring 
out that Duley sounded like Dooley over the telephone. 

Where should we place the blame for the resulting loss, 
with the human or with the mechanical factor! 

Before we attempt to answer this question, however, 
let us first change the story a little, substituting the Pat- 
ent Office for the business institution, and brand names 
for sur-names. 

Peter Smith was about to adopt the word EADIANT 
as the brand name for a preparation for cleaning wind 
shields and desired to have the exclusive right to use the 
name. Since Peter was a prudent man, he did not rely 
on his own observation and memory to warn him of pos- 
sible prior use (as so many trade-mark adopters do), but 
employed a competent Washington Patent Attorney to 
search the records of registered trade-marks, filed in the 
Trade-Mark Division of the Patent Office, for evidence 
of possible prior registration of the word. In the course 
of a week Peter was advised that, although RADIANT 
had been registered for finger nail polish, it had not been 
registered for a glass cleaning material ; and that, there- 
fore, since the goods were not of the same descriptiv^e 
properties, the prior registration was not conflicting, and 
Peter was not barred from using the name on his pro- 
duct and registering the word in the Patent Office. 

Pursuant to this advice, the word RADIANT was 
adopted as a trade-mark, goods were manufactured, car- 
tons ordered, catalogs printed, and a full page adver- 
tisement placed in the Saturday EveAiing Pillar to cost 
$7000; and in each instance the mark RADIANT was 
prominently displayed. In order to secure the benefit of 
registration, an application was filed in the Patent Of- 
fice. 

On Friday, the thirteenth, a report was received by 
the prosecuting attorney from the Patent Office reject- 
ing the application. The same day. Smith received a 



letter from another attorney, couched in legal parlance, 
describing the dire consequences that would follow if his 
unlawful use of RADIANT did not instantly cease, since 
that was confusingly similar to RAYDIANT, the ex- 
clusive property of "my client." On consulting with 
his lawyer Smith also learned that his application had 
been refused because of the prior registration of RAY- 
DIANT, for the same goods. The Patent Office Exam- 
iner was enabled to find that anticipatory word that es- 
caped the patent attorney, because his personal file was 
confined to marks in but a single class ; i. e. Class 4. 

Who Is Responsible? 

Where shall vv'e place the blame in this case, — on the 
attorney who made the search, or on the trade-mark 
filing system of the Patent Office? 

Suppose we charge the fault to the attorney who made 
the Patent Office ''search" and note the reaction. He 
vigorously refutes the charge, contending that his re- 
sponsibility ceased upon completion of the search and 
the report of the result with respect to the particular 
word submitted. In other words, that his responsibility 
did not extend to possible existence of every, or any, 
variations of RADIANT that might, or might not, be 
termed confusingly similar. His grounds for maintain- 
ing this contention Avere as follows : 

(1) That the nominal charge made for trade-mark 
"search service" obviously confined the extent of the 
search to the spelling submitted by the client. 

(2) That a trade-mark search service could reason- 
ably be compared to a "preliminary examination" of an 
invention which was never expected to include investiga- 
tion in every art where anticipation might be discov- 
ered. 

(3) That he could not be expected to exercise his 
imagination with respect to possible variations, since 
this would put attorneys in a difficult situation; for, if a 
certain variation which did not occur to the attorney had 
been registered, the attorney would be open to a great 
deal of undeserved criticism. 

"Therefore, the unfortunate results of this regret- 
able situation were not caused by any fault of mine," 
says the attorney in summing up. 



Let us now imbue the filing system with life, and ac- 
cuse it of negligence. 

* ^ My fault f Certainly not ! ' ' replies the filing system. 
*^Have clearly in mind, if you please, that there are two 
systems for filing and indexing either surnames or brand 
names: (1) the ^vowel-consonant'' system, which recog- 
nizes vowels, and (2) the ^^ consonant'' system which 
disregards them. The former may be regarded as a 
single-dutv system, and the latter as a double-duty sys- 
tem." 

^^The filing system which is used in the Patent Office, 
and which you blame for concealing instead of reveal- 
ing the word RAYDIANT — a phonetical variation of 
the spelling RADIANT — is the vowel-consonant system. 
This requires that filing arrangement of words, shall 
follow strictly the alphabetical sequence of letters, not 
merely with respect to the initial letter but to subse- 
quent letters as well; otherwise, no assurance could be 
given that the file would reveal the word sought. Thus 
to file Duley with Dooley, or RAYDANT with RADI- 
ANT would be in violation of the rule. However, un- 
less the rule is violated, neither of these words would be 
found when searching for the other ; and unless the sec- 
ond word occurs to the searcher through the exercise of 
a fertile imagination it would be lost through its alpha- 
betic difference. Therefore, it is indisputable that the 
sole function of the vowel-consonant filing system, as 
illustrated by the files of the Patent Office, is to disclose 
a previously knoivn word, spelled one way only. And 
that duty is performed without criticism. But when it 
comes to asking this particular system to reveal prompt- 
ly, or after much delay, or at all, all variations of a word 
phonetically spelled, or so spelled as to resemble the 
correct spelling, such a request is tantamount to asking 
the haystack to reveal the needle." 

So we must search elsewhere to place the blame, ac- 
cording to the filing system. 

Fundamental Rule Responsible. 

And now there comes a friend of both suspects who 
testifies that in his opinion neither the Patent Attorney 
nor the Patent Office is at fault, but that a fundamental 
rule of Trade-Marks is responsible for the unliappy re- 



suit that the file conceals, rather than reveals, vitally 
important words. This rule is that confusing similarity 
between words as well as identity infringes. Were it 
not for this rule, searching for words possessing resemb- 
lance would be unnecessary, assuming they are filed ac- 
curately, and the vowel-consonant system would be fool- 
proof. In defense of this system, the friend adds that, 
although it must be admitted that neither RAYDIANT 
nor RHADIANT would be disclosed when searching for 
RADIANT in a vowel-consonant system, this objection 
is not important because of the rare occurrence of analo- 
gous instances. 

Misspelled Words. 

But here the writer must submit a little of his person- 
al experience. Turn over with me the leaves of a bound 
volume containing the trade-marks registered in this 
country in 1900. Note how many pages we pass before 
we find a single word misspelled, either through careless 
spelling or in an attempt to spell phonetically. Now let 
us consult the marks published in 1921. By actual count 
we find more incorrectly spelled words in the first issue, 
that is, Januarv 4th, than in the first six months of the 
year 1900. 

What is the reason for the changed condition'? Ask 
either the trade-mark adopter or his advertising mana- 
ger, and you will be told that it is an attempt to make 
the trade-mark as attention-arresting as the advertis- 
ing copy itself. One means of accomplishing this result 
is to misspell the trade-mark, for it causes the eye to 
telegraph to the brain that, for example, radiant is be- 
ing spelled RHADIANT. The tendency of this subcon- 
scious mental deduction is that the observer will recall 
the word more readily at a later time. 

In addition to intentional misspelling of dictionary 
words, there are the strictly coined words, or as the 
British Patent Office designates them ^'invented" trade- 
marks, which are becoming increasingly popular. These 
two types of words present different problems when a 
search for confusingly similar words is instituted ; for in 
case of the former type, the spelling of the word very 
frequently — or usually — suggests other possible forms 
of spelling, while coined w^ords rarely — or seldom — give 



— 6— 

a clue to other possibilities. Practically impossible of 
discovery by alphabetic methods are variations of spell- 
ing of the same word. 

In the following list of Patent Office registered words, 
which have been selected from a group of many similar 
ones, the similarity of the second word is clearly suggest- 
ed by the first. Every attorney should perhaps attempt 
to discover such variations even at the expense of be- 
ing criticised for failing to educe those more difficult. 

The reason for the use of both capitals and small let- 
ters will appear later. 

ELBeeCo — ELPaCo PaRaZoNe — ^PuRoZoNe 

PuLeTeX — ^PiLeTeX ReSiNoL — RoSoNaL 

LuCeRNe — LuZeRn RoLaX — ^RoLoX — ^RiLoX 

PeNieL — PlNeaL AOMe — AKMe 
CoQueTTe — CoZeTTe 

Of these words, PuEoZoNe would be the most trouble- 
some to find when searching PaRaZoNe; but a trial of 
^^P" followed by ^^e'' ^4" ^^o" "iV' would disclose the 
^^PuR" triplet, which pursued further would lead to 
^^PuRo," and finally PuRoZoNe. 

Starting with either word in another group : 

WiZ — WhiZ NiPs — NiBs 

PeMBiNa — PaMBiNo PeNPLeX^PaNoPLiX 

PiNoOKLe — ^^PeaNoOKLe PiNToFF — ^^PaiNToFP 

TRuPLeX — TRiPLeX WaKe UP— WaCKe UP 

PoLLeNe — ^PauLiNe PuNJaB — PoNJaP 

TRiaNGLe — TReyeNGLe DouGhBoy — DoeBoy 

more thought would here be required to discover the 
similarity of its companion word; because, in searching 
the first word of the above couplets, failure to discover 
the companion word would be a natural mistake ; for the 
tendency in searching is to commence with the known 
word and proceed in the direction of ^'Z.'' If this course 
were followed here, the similar words would remain un- 
discovered, since only a search which commenced alpha- 
betically ahead of the words as spelled would reveal 
them. 

The possibility of three, or even four, words disclos- 
ing similarity is illustrated below. These words are nec- 
essarily distributed to different alphabetic positions in 
the Patent Office files: 



— 7— 

PoSTeX — PaSTaX — PauSTiC 

RaiNBoW — ReiNBo — ReMBo 

PauSTiC — PaSTaX — PoSTeX 

LoiiSeXe — LuCiXe — LewiSiNe — LiieSan 

PaiNiNe — PiNeNe — PlieNiNe^-PiNoX 

PaiiLiNe — PoLeXe — PoLLiNe — PaaaLiX 

SiXoI^— SyNol— ShyXoL— ShyXaL — ShiXe aLL 

Eeversing the positions of the first vowel and conso- 
nant, which follow the initial letter of a dictionary word, 
makes the companion word almost impossible of discov- 
ery, e. g. : 

TaRPoN — TRaPoN GaRDa — GRaDa 

And then we have words with the same vowels but 
different consonants. Such words disclose differences in 
appearance but similarity in sound: 

ITaTa — IDaDa 

Such words are lost in the alphabetic differences of a 
^^owel-consonant filing system. 

There is vogue in trade-marks as well as in fashions. 
A present trade-mark vogue seems to be to omit either 
the first or second letter after the initial letter, for ex- 
ample : 

BiLT for BuiLT PaKt for PaCKeT 

VDo for VeDo DLiGliT for DeLiGlit 

MRVeL for MaRVeL MSTeRDaM for MASTeRDaM 
HeLThwiX for HeaLTliwiN 

Could the first word in each couplet be hidden more 
effectually than by alphabetic filing? And yet, the search- 
er may be expected to be aware of the existence of such 
words. Let us repeat, that all of foregoing words are 
found in the files of the Patent Office. 

The registration of ''Cavalier" and ''Chevalier," both 
for whiskey, words similar with respect to (1) sound, 
(2) appearance and (3) significance, the three tests for 
infringement, causes one to speculate whether or not 
"Chevalier" did not escape the Examiner's eye in 
searching for "Cavalier." And when we find "Cava- 
lier" for shoes passed by the Examiner for publication, 
we are led to wonder why, since "CHEVALIER" al- 
ready had been registered. 

The Office records disclose neither opposition nor in- 
terference in either of these cases. 



— 8— 

Another Aspect. 

There is still another aspect of the matter of resem- 
blance in trade-marks. Suppose, for the sake of exam- 
ple, that the companion marks in the foregoing illustra- 
tions be regarded as variations of each other, which are 
fair and are legally available for appropriation for 
goods of the same descriptive properties without in- 
fringement. If a prospective trade-mark adopter de- 
sires originality, it will not wholly satisfy him to know 
that he would be within the law in adopting one of these 
companion words, since he seeks wide differences rath- 
er than close resemblances. Therefore it is only half the 
story to advise a prospective adopter of a trade-mark 
that a word has not been registered if an even remotely 
similar word is either registered or published for the 
same products. 

With this material at hand, we are now prepared to 
answer more intelligently the questions which have been 
propounded : 

In the Dooley — Duley case, shall we blame the human 
or the mechanical factor? 

In the Radiant — Raydiant affair, was the attorney at 
fault, or was the filing system defective! 

If a workman is placed at an old fashioned machine, 
do we blame him or the machine, if the work falls below 
standard! 

As there is but one answer to the last question, there 
can be but one to the first two, and that the same : in each 
of these cases the blame properly falls on the mechanical 
factor — the filing system; because the human factor can- 
not be expected to perform strictly mechanical acts, or 
to supply inherent mechanical defects in the tools at 
hand. 

At this point, the reader may opine that the foregoing 
discussion is not very helpful, for the criticism is de- 
structive rather than constructive; and ask, "Has the 
writer no specific panacea, whereby the discover}^ of 
similarity in word trade-marks may become mechanical, 
rather than mere chance and guess work!'' 

Filing by Consonants. 

In answer be suggests the adoption, by the Patent Of- 
fice, of a ''Consonant" filing system for trade-marks. 



— 9— 

This system has a distinct advantage over the single- 
duty ^^Vowel-consonant'' system; for the former per- 
forms a double duty, in that it reveals under the same 
index heading, (1) the known word, and (2) any similar 
imhioivn variants, if such are in the filing system ; while 
the latter system definitely reveals only the known word. 
This double-duty of the ''Consonant" system is essen- 
tial to a trade-mark filing system, if the most interested 
party, the trade-mark adopter and user, is to receive 
what he really desires and needs, when he requests that 
a ''search" of a trade-mark be made for him; although 
he may not be aware of the vital importance of the in- 
formation revealed by the "double-duty" s^^stem. The 
advantage of such a system to the attorney, however, is 
too apparent to require extended explanation. It is 
enough to sa}^ that the disclosure of confusing similarity 
often constitutes evidence upon which a case may turn. 

To illustrate the thorough simplicity of the s^^stem, the 
writer has a few illuminating examples taken from his 
own experience in searching his personal files of Patent 
Office registered trade-marks, filed and indexed under 
the "Consonant" s^fstem, and tested for several years. 

Suppose a client requests a search of the word 
"ECHO." I look for the guide card EC, and behind 
this card I find not only the word ECHO, in all the dif- 
ferent classes in which it is registered, but also ECO, 
ECCO, EKO and EKKO (the letter K is treated as the 
equivalent of the letter C, and double letters are treated 
as if they were single). Obviously, these words are con- 
fusingly similar, and should be communicated to the 
client, if in the same class. If the word sought had been 
EChoMo, I should have looked behind the guide card 
ECM; similarly, EChoMoD would be behind card ECMD. 

From this illustration, the reason for the capital con- 
sonants and small-lettered vowels in the preceding 
groups of words will be evident; for, in the "Consonant" 
system, vowels are disregarded except where they are 
the initials letters of words. 

In order to exemplify a few of the countless possible 
combinations of certain consonants connected by various 
vowels, to create coined words, let us use trade-marks 
either published or registered, having the kev letters 
PELN: 



—10— 
PRLN 

Pa Ra Li N 
Pa Ra LioN 
Pe Ro Li N 
Pe R Li Na 
PeaR Li Ne 
PoweR Li Ne 
P Ro La N 
Pu R Lai Ne 
Pu Ro Le Ne 
Pu Ro Li Ne 
Py Ra Li N 
Py Ro Li N 

When creating coined words for clients, the writer 
frequently first selects the consonants to produce cer- 
tain phonetic results, then draws these letters, separated 
from each other, in vertically extended form, and fills in 
different vowels until a suitable word is produced. It 
is interesting to conjecture the number of words based 
on P R L N that will be found registered, say in 1950: 
and also the number that will be published but unregis- 
tered, waiting to destroy some one's fond hopes. 

The following list may give the reader some idea of 
the efficiency that the writer secures in a search of his 
own files compared with a search in the Patent Office 
files. Taking the words in the first column which would 
be found in the same tray, behind the guide card SML in 
the writer's files using the ^^ Consonant" filing system, 
let us see how they are scattered in the filing drawer in 
the Trade-Mark Search Eoom of the U. S. Patent Office. 
Calling the drawer in which the first word is found No. 
1, note the number of drawers that intervene between 
the different words, and particularly between the first 
and last words : 

Patent Office Location of Words. 



Word FUed 


Drav^er Designation 


Drawer Number 


SAMOL 


SAM to SAMSON 


1 


SANOL 


SANITEN to SANTI 


4 


SANOLA 






SEMOULE 


SEM to SENSA 


18 


SENNOL 






SINOL 


SLMPLE to SIRE 


33 


SINULA 






SOMNAL 


SOM to SORO 


43 


SUNOL 


SUNG to SUNQ 


75 


SUNOLIO 






SYNOL 


SYLANS to SZZ 


S3 



—11— 

The writer will be surprised if this disclosure does not 
call forth the remark, ''How can the attorney, asked to 
search any one of these words, be reasonably expected to 
find the rest of them in the Patent Office file, and other 
combinations of SML which may later be either pub- 
lished or registered and filed perhaps in other drawers?" 

Not Fool-Proof . 

"But, is this 'Consonant' filing system fool-proof!" 
some one asks, "Are there no traps?" 

And here it must be admitted that there is one fault 
with this system. If, for example, a client wishes me to 
search the word PaNDoMiN for Corsets, I first look be- 
hind the guide card PNDM in the "Consonant" file and 
find every word having that combination of consonants. 
Eut if the word PLaNDoMiN for Corsets, obviously con- 
fusingly similar, should be filed, it. would be hidden be- 
hind card PLND, and would not be found in my search 
of PNDM. The "Vowel-Consonant" system is, howev- 
er, no better off than the "Consonant" system in this 
respect. 

The question which would naturally follow: "How do 
you provide against such a contingency?" may be an- 
swered by describing another file, which the writer calls 
his "Industry" file. In this file, distinct from the "Con- 
sonant" file and complete in itself. Patent Office trade- 
marks are filed separately according to the forty-nine 
classes designated by the Patent Office, and also, in some 
instances, into convenient sub-classes. The words in this 
file are placed alphabetically behind cards indexed with 
the single initial letter of the word. By subdividing the 
large classes, it is the exception to find more than two 
hundred words behind any index card. 

If, then, PLaNDoMiN had been registered for corsets, 
and missed in searching "PaNDoMiN in the "Conso- 
nant" file, it would be found behind the index card "P'' 
in searching PaNDoMiN for corsets in the CORSET sub- 
division of "Class 39, Clothing," in the "Industry" file. 
Hence, with careful filing and indexing, > the "Conso- 
nant" file, supplemented by the "Industry" file, is me- 
chanically fool-proof. 



—12— 

Conclusion. 

Therefore, in a brief conclusion to the discussion of 
the first defect, we submit that the Patent Office trade- 
mark file is vitally defective for the reason that it is a 
"single-duty'' system, and consequently, is inflexible 
and fails to disclose confusingly similar words; where- 
as, a complete search requires a "double-duty" sys- 
tem, one that will not only disclose the searched word as 
spelled but also disclose alphabetic varients. The "Con- 
sonant" filing system fulfills the obligation. 



THE TRADE-MARK FILE OF THE U. S. PATENT 

OFFICE. 



Its Two Vital Defects and Their Correction. 



(Part II) 



Importance of Filing ''Published" Marks. 

Now let us consider the second defect. 

A new sales manager in a large jobbing concern de- 
sired to learn whether the different stages in the pro- 
gress of orders through the establishment were func- 
tioning efficiently. He selected for investigation the 
stage at which the orders were transferred from the 
credit department to the shipping room; and requested 
a clerk to locate a certain order. The clerk replied, '*We 
have no means of finding this order except that of hunt- 
ing through the thousands of orders which are being laid 
out by the order clerks." 

'*Do you mean to say that you have no file for this 
purpose ? ' ' asked the manager. 

''None at all although we need one badly," was the 
answer, which drew from the manager a remark more 
forcible than elegant. 

Was the practical impossibility of locating the order 
after it had been accepted and passed on by the credit 
man a defect in the order system? 

Let us turn now from the commercial to the legal as- 
pect of a situation with respect to trade-marks. 

Somebody Blundered. 

One day, several years ago, a client thrust a copy of 
the Official Gazette upon the writer's desk, and told 
me his tale of woe in a voice trembling with emotion and 
anger. 

"You wrote me," he said, "that my trade-mark was 
not registered in the Patent Office by any one. Here is 



—14— 

the mark registered by a competitor. My mechanical 
engineer found it. What are we going to do now? Our 
preparations are all made to sell the goods under this 
name. ' ' 

I tried to pacify him ; told him that the mark his engi- 
neer had discovered was not registered, but merely pub- 
lished, i. e. pending registration; explained the object of 
publication, but failed to convince him that his unfortu- 
nate situation was not the result of some delinquency on 
my part. 

His parting words were : ^ ' This announcement — I call 
it a registration — is at least a public record. You get 
this book; why didn't you see the wordf — as if, because 
I once saw it, as it passed before me in perusing the 
Gazette, I could be reasonably expected to remember 
the particular mark my future client was interested in 
from among the tens of thousands of published marks 
covering a period of years. 

The irony of this unhappy incident has been brought 
home most forcibly to the writer, for it has fallen to his 
unhappy lot to observe the publication of several trade- 
marks applied for in behalf of his erstwhile client, and 
placed through a patent attorney who consults the 
writer's own file of registered and pending registration 
marks in making his reports regarding the registrability 
of these very marks. 

Shall we say that the fault was mine that my client 
was originally placed in such an unfortunate predica- 
ment? or, can we blame the Patent Office because of its 
failure to place within reach of a prospective applicant 
information regarding marks ''pending registration" — 
for, can it be denied that such information is as import- 
ant as a knowledge of marks actually registered, or, un- 
der certain conditions, even more important? 

Strange to say, neither the prospective trade-mark 
adopter, nor patent attorneys generally seem to fully 
appreciate the benefits to be derived from a complete 
file of published marks, from the year 1905 when publi- 
cation commenced up to the current issue of the Gazette. 
As a consequence they do not notice the absence of these 
benefits. They may attach mucl^ importance to a regis- 
tered mark, and yet disregard as negligible a mark 
''published'' on the same date. However, it is the writ- 



ris- 
er's contention that knowledge that a mark is in the lat- 
ter condition is even much more helpful and necessary 
to the applicant, under certain conditions, than the mere 
appreciation that a mark is, or is not, registered. 

Rejection vs. Interference. 

To illustrate, suppose a prospective registrant files an 
application for a trade-mark. If the Examiner finds the 
word to be already registered, the application is reject- 
ed, and the incident closed. The applicant loses only the 
cost of his application (and this loss could have been 
prevented if a search had been made). But what is the 
result if a conflicting mark happens to be in the stage 
''pending registration,'' that is, published but not is- 
sued? In such case, the application is not rejected forth- 
with, but is held for interference proceedings; and the 
applicant becomes a party to the interference, — often an 
unwilling party. His use of the word is disclosed to a 
concern in the same line of business, and, if his claimed 
date of first use is subsequent to that of the preceding- 
applicant, prima facie he is an infringer. He has this 
expense in addition to the cost of his application, and 
perhaps he will have to destroy many cartons and labels 
already prepared, and reconstruct an advertising cam- 
paign if he is convinced that the prior applicant was the 
first user. Strange to say none of this expense coukl 
have been saved by a search of the Patent Office files, for 
the unregistered "pending registration'' word would not 
have been found ; therefore when we are determining the 
causes of this needless expense, we cannot overlook the 
fact that the Office is virtually concealing the conflicting 
mark, which it has already publicly revealed through 
publication, by its failure to subsequently make it acces- 
sible. 

Very striking and conclusive evidence in support of 
the writer's contention could be adduced if the reproduc- 
tions of all the published but unregistered marks printed 
in the Gazette were clipped individually and impaled 
upon a pin. How long would the pin be? We shall see. 
The clippings would then include marks pending regis- 
tration, marks published for the purpose of interference 
and opposition, and those pending placement in the files 



-16— 



of the Search Eoom. If the reader were then asked to 
find the clipping upon which appeared the words * * ONLY 
ONE*' as applied to a dyspepsia remedy (pardon the 
levity), how many clippings would he need to remove 
from the pin, if the word were at the bottom? 

Let us use once more the issue of the G-azette for Jan. 
4, 1921 in order to obtain data that will help us to an- 
swer this question. In the numerical listing of trade- 
marks registered weekly, there is also printed the date 
on which each mark was * * published. ' ' Therefore, in the 
tabulation below, we find the date of publication of all 
marks registered on Jan. 4, 1921, together with the num- 
ber of marks published on that date, and also the num- 
ber of weeks which have elapsed since the date of publi- 
cation, in summing up, we have the aggregate number 
of elapsed weeks for all the marks in the list: 

Publication Data re Trade Marks Registered Jan. 4 1921. 



Date of 


Number of 


Elapsed time 


Total elapse 


Publication 


Marks 


in weeks 


time 


March 20, 1917 


1 


198 


198 


May 29, 1917 


1 


189 


189 


Aug. 5, 1919 


1 


75 


75 


Aug. 26, 1919 


1 


72 


73 


Nov. 18, 1919 


1 


60 


60 


Dec. 23, 1919 


1 


54 


54 


Mar. 2, 1920 


1 


44 


44 


June 1, 1920 


1 


31 


31 


June 15, 1920 


1 


29 


29 


July 6, 1920 


4 


26 


104 


July 13, 1920 


9 


25 


225 


July 20, 1920 


5 


24 


120 


Aug. 3, 1920 


1 


22 


22 


Aug. 10, 1920 


15 


21 


315 


Aug. 17, 1920 


2 


20 


40 


Aug. 24, 1920 


11 


19 


209 


Aug. 31, 1920 


3 


18 


54 


Sept. 7, 1920 


20 


17 


340 


Sept. 14, 1920 


112 


16 


1792 


Sept. 21, 1920 


2 


15 


30 


Sept. 28, 1920 


1 


14 


14 



Total elapsed time in weeks 4017 

Tf we now take from this table the omnd total of 4017, 
which represents the entire number of weeks which have 
intervened between the date of publication and the date 
of registration for all marks registered on Jan. 4, 1921, 
and divide it by 195, the total number of marks regis- 



—17— 

terecl on this date, we have a quotient of 20. If to this 
quotient we add the average delay in filing copies of 
registered marks in the drawers of the ^^ Search Eoom'' 
of the Patent Office — about three weeks — we have now 
arrived at a "constant" of 23, w^hich represents the av- 
erage time in weeks intervening between the date of pub- 
lication and the date on which a copy of the registration 
is placed in the Patent Office files for the purpose of 
"searching," that is, nearlj^ six months, during which 
time practicall}^ 5000 trade-marks applied for have been 
concealed from view^ In order to determine the num- 
ber of clippings on the pin we must multiply this "Con- 
stant" 23 by 195, which represents the average number 
of registrations per week. The product is 4485 ; there- 
fore, the reader would have to examine that number of 
clippings before coming to the trade-mark "ONLY 
ONE" for dyspepsia tablets. It is estimated that the 
pin would have to be more than two feet long to hold all 
the clippings. 

It will be noted that the registration first listed was 
published March 20th, 1917. This means that while for 
a period of nearly four years a "search" conducted in 
the Trade-Mark Search Eoom of the Patent Office rela- 
tive to the trade-mark "GEARLIFE" would of neces- 
sity cause both the attorney and his client, to assume 
that the word was open to exclusive appropriation, and 
furthermore, that if registration was applied for the ap- 
plication would, in absence of opposition or interference, 
have an assured, if snailpace, journey through the tor- 
tuous paths leading to the ultimate goal, the fact is, that 
neither assumption would be correct. And the pity is, 
that close at hand, as the search was being made, reposed 
the documentary evidence that at once would have disa- 
bused the searcher's mind of such erroneous assump- 
tions. 

The lesson to be learned from this little story is that, 
if a prospective trade-mark adopter desires to be in- 
formed with respect to possible "anticipation" among 
"pending" as well as "registered" trade-marks (and it 
is believed that this request would be almost universal, 
if it were known that such is both necessary and obtain- 
able), the "search" necessarily should include not only 
marks registered in the Patent Office, but also marks 



—18— 

published in the Gazette for a period of several years 
prior to the date of the search. In spite of this, howev- 
er, the Patent Office provides no means to assist the 
searcher, except the indiscriminate, helter skelter listing 
of marks in the weekly Gazette. 

In this regard, a few more illustrations from the writ- 
er's practice would, perhaps, be enlightening. A client 
recently requested that a ^^ search'' be made of the word 
^^ Ambassador" for candy. Eeference to the Patent Of- 
fice file indicated that this word had not been registered 
for candy ; but when the writer consulted his file of pub- 
lished marks, he found two applications for *^ Ambassa- 
dor" for candy, which proved after investigation, to be 
in interference. Both marks were published in the Ga- 
zette of May 31, 1921, pages 1021 and 1023. 

Another instance: In searching *^ Country Club," the 
Patent Office file showed no prior registration of the 
mark for ice cream; whereas, the writer's file of pub- 
lished marks disclosed that this word couplet had l3een 
published in the Gazette of Aug. 26, 1919, page 604, and 
also in the Gazette of Aug. 31, 1920, page 959, for the 
same goods. 

Owing to the unfortunate condition created by the fail- 
ure of the Patent Office to file published marks, both 
AMBASSADOE and COUNTRY CLUB were presum- 
ably open to registration, as far as the Patent Office 
Trade-Mark file is concerned, notwithstanding the prior 
publication of both marks in the Official Gazette. Eith- 
er of these marks would have stood as a bar to registra- 
tion of the same or a confusingly similar mark for the 
same goods, until after the termination of the interfer- 
ence proceedings, since instructions have been given in 
each case to file applications if no anticipation! was 
found. 

Should the government, with its immensely profitable 
Patent Office Trade-Mark department, be permitted to 
thus deceive the innocent searcher of trade-mark infor- 
mation? 

Prospective Applicants Deceived. 

As a further result of the failure of the Patent Office 
to file ^* publications," the prospective applicant finds 



—19— 

himself in a particularly unfortunate position whenever 
both parties to an interference proceeding either mutual- 
ly agree to withdraw their applications or fail to contest 
their cases. If thereafter, a third application for the 
same word was filed in the Office for the same goods, the 
Examiner would not reject it, because the prior applica- 
tions are no longer pertinent; but it may reasonably be 
presumed, that the applicant would soon find himself a 
party to an opposition proceeding. Unacquainted with 
the publication of these marks, his handicap would be 
this, that he would be unable to obtain, from any listed 
source, any knowledge of the prior application or any 
evidence as to the date of first use as claimed by his pre- 
sumptive opponents. 

If the prospective adopter did have the benefit of this 
information, through the publication of the claimed dates 
of first use, he could either file his application or with- 
hold it, depending upon whether after investigation he 
found his own date of first use to be prior or subse- 
quent to the applicants in controversy. Of two publish- 
ed marks for the same goods neither of which have ma- 
tured into registration the following is an example: 

'^HIGH AET" for mens' shirts; Nov. 30, 1915, Offi- 
cial Gazette, page 1703, first use Sept. 1913. 

''HIGH AET" for mens' shirts; Mar. 10, 1914; Offi- 
cial Gazette, page 567 ; first use Dec. 1, 1911. 

It is also very disconcerting to both attorney and 
client alike to file an application for registration, ac^ 
companied by a request that an interference be entered 
against a registered mark, and then later to have the 
Examiner of Interferences report that there is still an- 
other party to the interference whose mark has been 
published, and whose claimed date of first use is prior 
to that of both the registrant and the subsequent appli- 
cant. 

Filing and indexing ''published" marks would pre-\ 
elude the possibility of such surprises, since attorneys ■ 
would have means of discovering such unlooked for 
claimants and could verify the dates given. ^ 

An ' ' Interference ' ' Pitf aU. 

An oft occurring "Interference" pitfall is dug when 
two applicants are in interference mth respect to cer- 



~20— 

tain products, but not as to others; and the most zealous 
attorney, who uses the Patent Office file of ^^Eegister- 
ed'' marks to conduct his search, cannot protect a pros- 
pective applicant from a tumble. The situation may be 
explained by a concrete illustration: 

^' JACK AND JILL'' was registered for Eompers and 
Hosiery. A subsequent applicant filed an application 
for the same trade-mark for Creepers, Rompers, Outer 
Garments, Underwear, Hosiery and Shoes. A third par- 
ty also filed an application for Garters and Waists. Thus 
the public was put on notice, by means of ^^publication'' 
of these applications, that, in addition to Inner and Out- 
er Garments and Hosiery, also Garters and Shoes were 
being sold under the trade-mark ''JACK AND JILL." 
And then what happened to this valuable "published" 
information! Is there any clearer way of expressing it 
than to say that it was ' ' shuffled into the discards, ' ' and 
thereby made practically inaccessible to both the attor- 
ney and his client and also to the trade-mark adopting 
public generally. This condition was recently disclosed 
to the writer through searching "JACK AND JILL" 
for Shoes and finding it in his personal file of published 
marks. 

Eventually the interference with respect to the con- 
flicting goods will be decided, (it was pending when this 
article was written). Until such time Garters and Shoes 
will continue to be pitfalls ready to trip the innocent ap- 
plicant for registration of "JACK AND JILL" for 
these goods. 

Then, there is the situation in which the prior user 
successfully opposes a "published" mark, but fails to 
register himself. Should another applicant, unaware of 
the two prior parties in controversy, file an application, 
he would probably be opposed by the opposer of record ; 
whereas, if the publications of the first application had 
been placed on file, facts might have been disclosed which 
would have deterred the second applicant from filing. 

Again, suppose the Office inadvertently passes to pub- 
lication an application seeking to register a mark for 
many products, in Class 6 or 46 for example, when the 
same mark had already been registered for but one of 
those products. Or, suppose that, although the particu- 
lar description of the applicant's goods differ from that 



—21— 

recited in a previous registration, the goods have the 
same descriptive properties, and the registrant in each 
case files a notice of opposition; if the applicant then 
fails to file his "Answer," the Office rejects the applica- 
tion. In either of these circumstances concerns in the 
trade have lost the benefit of this information conveyed 
by the publication concerning the products sold and 
dates of first use, as claimed by the applicants, because 
"Published" marks are not filed and indexed by the 
Patent Office ; and so too is the knowledge of products 
lost in every case where a "Published" mark fails to 
mature into registration. 

Published trade-marks which never mature into regis- 
tration are sometimes helpful as an index with respect 
to the scope of trade-mark rights as viewed through the 
registrant's eyes. For example: the word "Cottolene" 
was applied for, the products being animal-feed meal. 
Obviously these products are of different descriptive 
properties than cooking fat, nevertheless, the prior user 
of the word believed that registration would damage him 
and opposed registration. 

There are yet other objectionable features of the Pat- 
ent Office Trade-Mark filing system which, although not 
strictly within the scope of this article, the writer takes 
the liberty of mentioning at this time. One is the loose 
filing of trade-mark copies in the filing drawers. Thej 
regular practice of perforating and running a string' 
through the copy, and then fastening the string ends, 
with a lead seal is as slow and clumsy a method as can- 
be imagined ; however it is quite in keeping with the old 
saw that a barber's child seldom has his hair cut. 

These copies are open to the inspection of the public i 
ivitJioiit supervision, — a practice which is unwise to say; 
the least. I have found as many as 2Q0 loose copies in 
one drawer, repo^sing behind the bound copies. The op- 
portunity for replacing copies incorrectly is thus ever 
present, not to mention the possibility of removal en- 
tirely. 

Piecemeal Filing. 

^ As a matter of general information it may be stated 
that copies of resristered trade-marks are present under 



—22— 

three conditions in the Search Room. Those registered 
from 1881 to 1916 are tied together in the respective 
drawers where they repose. Copies from 1916 to 1919 
are loosely placed behind the tied copies. While, un- 
known to many attorneys, copies from January 1, 1919 
to date are in files separate from the regular file. 

In two instances, previous to the completion of my 
own files, I discovered that copies were missing from the 
Patent Office files, and recently a picture trade-mark 
could not be located. Obviously, this is the result either 
of an error of the filing clerk, or an unconscious fail- 
ure, on the part of some unofficial ''searcher" to return 
the copy to the proper place. 

If there are those who have had the courage to peruse 
this article up to this point, they are entitled to be re- 
lieved, for the moment, by the telling of a good story — a 
true one. 

A well known Washington Trade-Mark Specialist was 
instructed to search a trade-mark. He advised that it 
had been registered. Later the prospective adopter vis- 
ited Washington and was shown the copy in the file< 
Upon his return from Washington he instructed the 
specialist to file an application regardless of the prior 
registration. The application was rejected. Upon being^ 
so informed, the applicant replied ''How in — did the 
Patent Office find the registered mark? I took the copy 
away with me when I was in Washington. ' ' 

If there are, among the readers of this article, regular 
practitioners who have never experienced the misfor- 
tune attendant upon the deprivation of the benefits which 
would accrue from a public disclosure, in an easily ac- 
cessible place and by practical means, of "Published'' 
trade-marks, such a situation may best be illustrated by 
a somewhat analogous case. Would it not be a misfor- 
tune to be deprived of a knowledge of the contents of 
deeds, which have been prese;ited to the Registrar of 
Deeds for recording, and have been duly marked for rec- 
ord and thereafter filed away without indexing in the 
private files of the recorder for a period of months pend- 
ing a final registration! The answer is obvious; it 
would not only be a misfortune but it would also give 
evidence of fatal defectiveness in the recording system. 



—23— 
Inconsistency in Patent Office Filing. 

Still another charge can be brought against the Patent 
Office filing system ; namely, that the method of filing em- 
ployed, as between 'Svord" and ^'picture'' trade-marks 
is inconsistent, on the grounds that whereas "word*^ 
trade-marks are filed under the '' Vowel-Consonant" sys- 
tem, ''picture'' trade-marks are virtually filed under the , 
' ' Consonant ' ' system. 

Consonants are the essential elements of words; vow- 
els are the non-essential. The system of writing short- 
hand supports this proposition. 

With respect to pictures, features which identify the 
object are the essential elements ; specific details are the 
non-essential. 

As has been shown, the location of a ''word" trade- 
mark in the Patent Office file is largely determined by a 
nonessential element, that is, the vowel which usually 
immediately follows the^ initial letter. On the other 
hand, the location of a "picture" trade-mark is deter- 
mined by essential elements, — as it should be. 

For example, suppose it is desired to find a trade- 
mark comprising a dog's head with a collar. To be con- 
sistent the Patent Office should file the mark under 
"DOG," subclass "COLLARS," as it would file a word 
having the initial letter "N" followed by "A" among 
words commencing \^dth "NA," or if followed by "E" 
among words commencing with "NE." But in fact no 
such consistent subclass "COLLARS" exists. Instead 
of being discovered in a subclass under "DOGS" the 
picture would be found under "DOGS" unsegregated, 
where it had been placed by the filing clerk, who after 
observing the picture decided that the essential elements 
identified the subject matter as a dog. 

It may be asked why different subclasses were not cre- 
ated ; for example, subclasses for dogs wearing "Col- 
lars," "Muzzles," "Blankets," and for "Long-eared" 
and "Short-legged" Dogs, etc., to overcome the neces- 
sity of looking through all the dog pictures if one were 
seeking to find the picture of a dog so differentiated. 

The answer is obvious. If the pictures of dogs heads 
were filed in separate places, depending upon the exist- 



—24- 

ence of one or more of these non-essential elements, such 
a practice would defeat the primary object of filing trade- 
marks, which is, to disclose upon search not only the 
identical picture but similar pictures, inasmuch as all of 
the non-essential features which differentiate the picture 
of one dog from another, might not occur to the searcher, 
as for example, the picture of a dog wearing a ^'Blan- 
ket''; just as a person in searching the trade-mark ^^SI- 
NOL'^ under the ^ ^ vowel-consonanf system employed 
by the Patent Office might not find '^SHYNOL,'' from 
which it was necessarily separated, because of the dif- 
ference in the non-essential elements '4'^ and ^*hy.'' 

How to Remedy Defects. 

/ 

It is respectfully submitted that if the Search Rooms 
of the Trade-Mark Division of the Patent Office were 
provided with two complete files of word trade-marks 
which would include both ^ ^ published ' ' and ^ ' registered ' ' 
marks, one file utilizing the ''Consonant" and the other 
the ''Vowel-Consonant" system of filing, each file dup- 
licating the words filed in the other, misspelled words 
^ould be revealed with more certainty. Furthermore, 
either file could be used as a check against errors in the 
other. This method would correct errors of omission, — 
failing to file a mark anywhere, — or of commission — 
filing incorrectly, — whether the error was made by the 
original official Patent Office filer, or the later unofficial 
filers, — the attorneys — in replacing the copies after mak- 
ing their searches. 

I can assure the reader that a feeling of relief always 
comes over me when, after failing to discover a word in 
my "Consonant" file, the result of my search is corrob- 
orated by a consultation of my "Industry" file ; because I 
realize the fallibility of human effort. 

Whether it would be wise to divide the present Patent 
Office files into Classes is a moot question. However, 
without such division, the benefit of using one file to 
check the other is somewhat reduced; for without such 
division, a positive check on the "Consonant" file would 
necessitate either consulting every trade-mark in eighty- 
five drawers of the "Vowel-Consonant" file of the Pat- 
ent Office, if the word to be searched commenced with the 



—25— 

letter ''S," (for, there are approximately 15,000 such 
words registered), even though the number of words in 
the whole Class was small, or consulting the private file 
of an Examiner. 

If the object of a public file of trade-marks located in 
the Patent Office is primarily to safeguard trade-mark 
adopters from unnecessary controversy, could there be 
any more convincing proof of the desirability, nay, the 
absolute necessity, of filing for reference '^published'' 
as well as '^registered" trade-marks, than is disclosed 
by the following '^ YANKEE" trade-mark cases for can- 
dy. Let us set forth the facts categorically and thereby 
make them more clear. 

(1) ^'YANKEE" filed July 21, 1906 by Henry Heide. 
Published May 13, 1913. First use claimed since 1890. 
Mark published Mav 13, 1913. 

(2) ''YANKEE" filed December 27, 1910 by T. M. 
Paist. Published September 5, 1911. First use Mav 
1906. 

(3) "YANKEE" filed June 24, 1910 by Webers. Pub- 
lished September 12, 1911. First use April 7, 1910. 

(4) "YANKEE" filed by Windsor Chocolate Co. No1 
published but put in interference. 

(5) Heide was given a favorable decision over the oth- 
er applicants and a prior registrant and his application 
matured into registration July 29, 1913. 

From the foregoing the reader mil note that from Sep- 
tember 5, 1911 until, July 29, 1913, nearly two years, the 
trade-mark adopting candy trader and his attorney were 
without available means of discovering the several pit- 
falls in the pathway leading to registration had an ap- 
plication been filed for the registration of "YANKEE" 
for candy. 

But it is to the "TANGO" candy cases we should turn 
for the most glaring examples — in so far as the writer 
is aware — of exposed yet hidden trade-mark applica- 
tions. The following data tells its own story. 

Obseiwe that not a single applicant, with the exception 
of the eventual registrant, claimed a date of first use 
prior to that claimed by the first applicant ; and that the 
latter date had been disclosed to the world by publica- 
tion in the Patent Gazette even before the filing date 
of any subsequent applicant. Also observe that more 



—26— 

than three years intervened between the date of publi- 
cation of the first applicant's mark and the date of reg- 
istration by the successful applicant. 

Did any of these applicants fall into the "Failure-of- 
tlie-Patent Offitee-to-file-and-index-published-trade-marks 
PITFALL?" It is feared tliey did. It is also interest- 
ing to conjecture whether the publication of the "TAN- 
GrORENE" application (see inside back cover) escaped 
the eye 'of the attorney for the registrant, owing to the 
fact that the Patent Office has no public file where such 
may be found. 

"Tango" Candy Cases. 



Ser. No. 


First Use 


Filed 


Published 


Registered 


71,364 


6-11-1913 


6-25-1913 


10-10-1913 




74,22'4 


10- 1-1913 


11-26-1913 


2-10-1914 




75,426 


4-19-1913 


1-26-1914 


12- 5-1916 


2- 6-17 


77,414 


12-20-1913 


4-11-1914 


8-11-1914 




79,146 


5-15-1914 


6-16-1914 


7-21-1914 




81,652 


6- 1-1914 


10- 3-1914 


12-15-1914 




82,627 


1-23-1914 


11-16-1914 


1-26-1915 




82,783 


8- 6-1914 


11-23-1914 


3-30-1915 





A Recent Concrete Example. 

As this article is about to be sent to the editor, an- 
other concrete example has come to the writer's notice, 
and an incident in the present is much more convincing 
than tales of the past. A manufacturer of the "latest" 
in hot air furnaces — the single pipe type — originated a 
word as a brand name for his furnace, and had the name 
'^searched" through his regular counsel, who employed 
a Washington associate. The report stated that no an- 
ticipation had been found. 

The adopted word was cut into the patterns and hun- 
dreds of parts were cast. An advertising agency was 
then instructed to prepare an advertising campaign, 
which contemplated the preparation of many artist's 
drawings, an expensive catalogue, and country-wide dis- 
play advertisements, and in which the new word would 
be prominently featured. Following the custom of the 
agency, the trade-mark was referred to me, and I found 
that the same word — a mighty good word for a furnace, 
significant yet not descriptive — had been published near- 
ly three months. 



—27— 

In this case, my file saved the expense of drawings, 
catalogues and a controversy; but a similar file in the 
Patent Office would have saved the thousands of dollars 
worth of castings, which had to be thrown awa^^ as well' 
as other expense. 

Money Not Lacking for Improvement. 

Because of its failure to provide a file of "Published'' 
trade-marks, the U. S. Government inferentially assum- 
es the attitude that although it is willing to print in the 
Official Gazette in excess of ,1300 -pages per year, in 
which appear over 10,000 reproductions of trade-marks 
applied for, (1920 figures), it is unwilling to provide a 
practical means whereby a prospective trade-mark 
adopter may discover whether or not his mark is among 
the 4000 to 5000 marks continuously in the condition 
called "Published"; that is, accepted but not issued; 
notwithstanding the fact that the trade-mark division of 
the Patent Office netted the surprising net profit of 
$70,000 in the year 1920. Since the weekly issues of 
the Gazette are scanned by attorneys largely for the 
benefit of the trade-mark adopter who has not deemed it 
worth his trouble to register his mark, the advantage 
gained from the list of "Published" marks falls to the 
owner of such marks, for he may then oppose the regis- 
tration of another user who is ignorant of the prior 
adoption and use of the unregistered mark. Thus the 
trade-mark adopter who does desire to register his mark 
is put in a very disadvantageous position; and it would 
seem, therefore, that the Government was intensely in- 
terested in the user of a trade-mark who fails to put his 
mark on notice by means of Patent Office registration, 
but was quite indifferent toward the prospective user 
who desires to keep out of trade-mark controversy and 
to register his mark. 

Conclusion. 

En summing up, it is submitted that the experiences of 
tne writer are sufficient to prove the existence of two 
vital defects in the filing system of the Patent Office: 



—28— 

first, the employment of the unsatisfactory and ineffi- 
cient ^^ Vowel-Consonant '' system, in preference to the 
more modern and highly efficient ^^ Consonant'' system; 
and second, the failure to provide a file of ** Published ' ' 
marks. But it is also believed that this evidence will be 
substantiated by the personal experiences of the reader 
of this article. 

If the Patent Office would install the *^ Consonant" 
filing system, to assist searchers; and provide an in- 
dexed file of ^ ^ Published ' ' trade-marks; the Government 
could then offer to a deserving public a * ^ Fourfold-Du- 
ty" trade-mark service. Its fourfold function would be: 

(1) to disclose the known word, 

(2) to expose different spellings of the known word 
and to reveal similar words, 

(3) to make ^^ Published" and ^^Eegistered" trade- 
marks equally accessible, and 

(4) to check error or omission in one file against the 
other. 

Would not this be preferable to the ** Single-Duty" 
system of the present, which because of its inadequacy, 
is costing the business men of the country untold need- 
less expense? 



"Things are not always what they seem, 
Skimmed milk masquerades as cream." 



-PINAFORE. 



■cr. No. 81.652. (CLASS 46 iXVOPS AND niQBXDIJ Iter. "No. 79,146. (CLASS 46. FOODS AND INGBEDr 

ENTS Of FOODS.) Showley Bbos., San Diego. OMi BNTS OF FOODS.) Cbocolatb Pboducts Compant. 

nied Oct S. 1914 Baltimore. Md. Filed Jnne 16. 1914. 

TAN60RENE 62^ 

ftrNcuior dMcHpHon of good*. — Cuidjr. 

Ciaim* Me tlnce June 1, 1914. Particular descfiption of goods. — Cboc«latt Cvr«r«d 

Wut-Caody. 

Claiim ute since Ma; 16. 1914. 



8w Mo. Tl.Ml (CLASS 46. FOODa AND INGBEDW 8er. No. 82.627. (CLASS 46. FOODS AND INGREDI- 

ENTS OF FOODS ) NoTiLTV Candt Co., New York, ENTS OF FOODS.) Park & Tilfoed. New Tork. N. T 

N T Filed Joae 25. 1913 FUed Not. 16. 1914. 



VIOLET TANGOS 



tvvfrdd 



Tbe word " Violet " belftg disclaimed. Particular description of yood*.— Candles and 

ParticvUir de*wi^om~ot g»o4* — Ciady. latei. 

CJat«i» «*# Btafe June 11. 1913. Claim* ute since Jan 23, 1914. 



Bw No. 78,426 (CLASS 4«. POODS AND INOBBDl- «er. Nq. 77,414. (CLASS 4C. FOODS AND INGHKDI. 

ENTS OF FOODS.) BuNTi Bbothsss, CblcMo, IB. BNTS OF FOODS.) William C. Gacnon, aonm, S. D. 

Plied Jan 26. 191.4. Filed Apr. 11, 1914. 

'^ Gannon's I 

X i«V X ^ ^J ^^^ Vi^ Tbe words " Nuit; " and " Bar " aad " Gac&aa " Md 

tetag .claimed. 
PartfCMlar description of goods.-'-Cuiij. 
OkHmt Me ataAe Dec 20. 1913. 
Partioular description of goods. — Candy 
Claim* Me since about tbe 19tb day of April. 1913. 



3er. No. 82,783. (CLASS 46 FOODS AND INOBEUI 



Ser No. 74,224. (CLASS 46. FOODS AND l-VGUEUi 



ENTS OF f60DS .£««; i^cT.r:.-,. ,NCoaPOiUT.n fl''^^rj^?J'l2 Z',^'^''' ^°"''^ ^° " ^"""^'" 



Bostoo. Mass Filed Nov 23. 1914. 



Kj Filed Not. 26, 1913. 



jango 




Particular deecription of goods. — Cake /WTMWior deseriptib* of goods — Popi-orn-Crlsp. 

Claims ute since on or about Aug. 6. 1914. Claim* use since Oct. 1, 1913. 

Marks Involved in the Historic *' TANGO" Candy 
Interference. 

An illuininating example of conditions resulting from 
the failure of the Patent Office to file and index Trade- 
Mark applications which have been made public by pub- 
lication in the Official Grazette. While all of the above 
candy marks are in the writer *s file, none of them, ex- 
cept ' ' Tangorene, " which singularly enough was not 
asked to be placed in Interference, was to be found in 
the Patent Office files from October 10, 1913 until Feb- 
ruary 2, 1917. (See page 26.) 



LIBRARY OF CONGRESS 



liHll 



019 918 044 7 *• 



